Federal courts routinely determine fee petitions for prevailing parties in various fee-shifting
cases. A recent opinion from Magistrate Judge Denise LaRue illustrates guiding principles here. In M.T. v. Accounts Recovery
Bureau, Inc., No. 1:11-CV-969 (S.D. Ind. Aug. 8, 2012), LaRue issued a report and recommendation on fees in a Fair Debt
Collection Practices Act case. Plaintiff was a prevailing party based on accepting defendant’s offer of judgment, and
sought fees and costs pursuant to the act totaling $3,230. Over objections challenging the claimed hourly rate of $250 and
the reasonableness of some of the work, LaRue determined and recommended that the total award be $2,710. That much is unremarkable,
but the 13-page opinion provides a good and current summary of this area of federal practice and some useful insights for
plaintiff and defense alike.

First, the court explained the general standards, writing, “The Supreme Court has recognized that the lodestar method
– the product of a reasonable hourly rate and the number of hours reasonably expended on the litigation – yields
a fee amount that is presumptively reasonable. The Court may exercise flexibility to ‘adjust that figure to reflect
various factors including the complexity of the legal issues involved, the degree of success obtained, and the public interest
advanced by the litigation.’ The party seeking the fee award bears the burden of proving the reasonableness of the hours
worked and the hourly rates claimed.” LaRue also noted that the “Seventh Circuit recognizes that fee awards should
include time that attorneys reasonably spend on fee disputes.”

Second, as to reasonableness of hourly rates, LaRue observed, “Generally, a reasonable hourly rate for an attorney
is based on what the attorney charges and receives in the market from paying clients for the same type of work. Plaintiff
bears the burden of producing satisfactory evidence that the hourly rate is reasonable and in line with those prevailing in
the community. If Plaintiff satisfies this burden, the opposing party must offer evidence setting forth ‘a good reason
why a lower rate is essential.’”

LaRue found the $250 hourly rate reasonable, noting counsel’s 15 years of experience, an affidavit detailing fees and
costs, a fee agreement for counsel in FDCPA cases reciting the $250 hour rate, and a January 2012 decision from the court
in which the same counsel received $250 hour for his rate.

Defendant objected that the rate should be $150, asserting counsel lacked experience with FDCPA cases. LaRue dismissed this
argument, writing, “Defendant relies on Gastineau, 592 F.3d 747, where the Seventh Circuit affirmed the district
court’s reduction of an attorney hourly rate from $250.00 to $150.00. In that case, the Seventh Circuit approved this
rate reduction because the attorney seeking fees in Gastineau was handling his very first FDCPA case, he was substituted
in as counsel late in the proceedings, and provided poor lawyering. Id. at 749. The Seventh Circuit noted that ‘it
was inappropriate that a substantial portion of the hours billed were to compensate [the attorney in Gastineau] for
learning this area of the law.’ Id. None of those factors is present in this case.”

Third, as to the reasonableness of the hours spent on the matter, LaRue went through each aspect of defense objections and
recommended:

• the time charged for preparation of the form complaint and for undefined “research” should be reduced;

• the time charged for secretarial or clerical tasks should not be charged as attorney or paralegal time; and

• the time spent in creating billing records after the fact to support a fee petition is not compensable.

Finally, and notably for those on the defense side who confront this issue with insurers or corporate clients, LaRue determined
that while filing matters in court is administrative time that was not compensable, e-filing is another matter.

She explained, “However, the Court views the filing of electronic documents differently. Plaintiff points out that
electronic filing requires court training and is not available to everyone. Indeed, the Court’s Case Management/Electronic
Case Filing system (“CM/ECF”) requires attorneys to file documents electronically and to do so requires ECF registration
by an attorney. Registered attorneys are then assigned a login and password that is used when filing documents. S.D. Ind.
Electronic Case Filing Policies and Procedures Manual, pp. 1, 5-6. Based on ECF requirements, the filing of the October
13, 2011 Acceptance could only be accomplished by an attorney (or a staff member utilizing the attorney’s registration.)
The Court agrees with Plaintiff that the time spent electronically filing court documents should not be characterized merely
as clerical or administrative in nature. ‘In light of the problems that can result from a botched electronic filing,
the court will not second-guess the firm’s decision that such filing must be overseen by a paralegal.’ Williams
v. Z.D. Masonry, Corp. Cause No. 07 C 6207, 2009 WL 383614 (N.D. Ill. Feb. 17, 2009), slip op at 10.”•

__________

John Maley – jmaley@btlaw.com – is a partner with Barnes & Thornburg, LLP, practicing
federal and state litigation, employment matters and appeals. The opinions expressed are those of the author.

Conversations

0 Comments

Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or
hateful.

You are legally responsible for what you post and your anonymity is not guaranteed.

Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content
are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.

No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are
relevant to the topic at hand, but please do not link to objectionable material.

We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag
a post simply because you disagree with it.